Siphelele Goodman Nene vs. The State

South Africa

05.09.2022

Criminal

Applicant for grant of special leave to appeal must show that there are special circumstances which merit a further appeal to the court

Present is an appeal against the refusal by the high court of the Appellant’s application for leave to appeal to that court against his conviction and sentence. The issue before this Court is whether the Appellant should have been granted leave to appeal to the high court against his conviction and sentence.

In convicting the Appellant of a crime of contravening Section 36 of the Criminal Law Act, 1955, the trial court stated that it was satisfied that the evidence adduced established beyond reasonable doubt that ‘all four accused were travelling in the said Hyundai Accent and that they failed to give a satisfactory account of their possession’. The Appellant argued that the trial court misdirected itself regarding the application of Section 36 of the Act. His contention was that Section 36 is aimed at instances where the state is unable to prove that the goods concerned were indeed stolen, adding further that the state’s difficulty was that the complainant was unable to identify the thieves.

Present Court in S vs. van Wyk held that, an applicant for special leave to appeal must show, in addition to the ordinary requirement of reasonable prospects of success, that there are special circumstances which merit a further appeal to this court. This may arise, when in the opinion of this court, the appeal raises a substantial point of law, or where the matter is of very great importance to the parties or of great public importance, or where the prospects of success are so strong that the refusal of leave to appeal would probably result in a manifest denial of justice.

The Appellant contended that the elements of the crime under Section 36 were not established. Regarding the sentence, the Appellant asserted that the effective sentence of 22 years induces a sense of shock as most of the loot was recovered; the complainant was not harmed during the robbery, and he was relatively young, when the offences were committed. As to the trial court’s conviction on the crime of contravening Section 36 of the Act, the Supreme Court held that the trial court’s finding that the Appellant had failed to give account of his possession of the Hyundai Accent motor vehicle could not be supported in the absence of evidence by the police that after his arrest, the appellant was asked to give an account of his possession of the Hyundai Accent and that he failed to give a satisfactory account of such possession as this needed to be established for a conviction under Section 36 to be sustained. On the facts of the case, it could be said that the Appellant does have reasonable prospects of success, and the high Court should have granted him leave to appeal.

Tags : Conviction Leave to appeal Grant

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